The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically Correct Originalism, and Other Second Amendment Musings

Hastings Law Review, Vol. 60, 2009

UC Davis Legal Studies Research Paper No. 170

51 Pages Posted: 17 Apr 2009

See all articles by Alan E. Brownstein

Alan E. Brownstein

University of California, Davis - School of Law

Date Written: April 17, 2009

Abstract

This article considers several issues raised by the Supreme Court's opinion in District of Columbia v. Heller. One question is whether Heller requires the constitutionalization of self-defense decisions in tort and criminal law. If the Second Amendment protects the right to keep and bear arms for immediate self-defense purposes, as Heller holds, it arguably also protects the right to use firearms for self defense purposes. Put simply, does it make sense to interpret the Second Amendment to protect to the means to exercise self-defense without extending some level of protection to the act of self-defense itself?

Answering this question in the affirmative leads to other issues. The privilege or excuse of self-defense is grounded on an ad hoc evaluation by juries of the reasonableness of the defendant's conduct. That analysis may be appropriate for tort or criminal law purposes, but it is arguably much more problematic as a constitutional standard. There is also the question of whether a constitutionally required determination as to the reasonableness of defendant's conduct must be independently reviewed by appellate courts.

Heller may influence tort law in another way. Gun owners are often held liable for negligence if they store a firearm in a location where a child gains access to it and injures themselves or others with the weapon. The same safeguards that prevent a child from obtaining a firearm, however, such as storing it in a locked drawer, may make the weapon less available for immediate self-defense. Thus, state courts may need constitutional guidance as to how these negligence lawsuits should be resolved in order to avoid the substantial burdening of a gun owner's Second Amendment rights.

The article addresses other issues as well, such as the role of so-called prefatory clauses in developing doctrine for the protection of enumerated rights.

Keywords: Second Amendment, Heller, self-defense, prefatory clause, “the right to keep and bear arms”, independent review, negligent storage of firearms

Suggested Citation

Brownstein, Alan Edward, The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically Correct Originalism, and Other Second Amendment Musings (April 17, 2009). Hastings Law Review, Vol. 60, 2009; UC Davis Legal Studies Research Paper No. 170. Available at SSRN: https://ssrn.com/abstract=1390330

Alan Edward Brownstein (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-2586 (Phone)
530-752-4704 (Fax)

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